Twenty years of treaty rights

Twenty years of treaty rights by Indian Country Today

LAC DU FLAMBEAU, Wis. – There is still public concern regarding the hunting, fishing, and gathering rights of the Lake Superior Ojibwe, and for other tribes in Indian country. Battles have been fought in and out of the federal courts and on boat landings between angry anti-treaty protesters and tribal members exercising their treaty-guaranteed and court-upheld rights.

Twenty years have passed since the 1983 Voigt Decision. In northern Wisconsin, once the hotbed of the treaty rights struggle, calm has descended on the boat landings as each spring spearing season quietly comes and goes. The Voigt Decision has changed the way the world views treaty rights, tribal natural resources, and Native Americans.

Precipitating Factors

On Aug. 5, 1825, tribal leaders from around the Great Lakes region were gathered at Fort Crawford near Prairie du Chien, Wis. for a great meeting with the whites. At the meeting the Indians were asked to translate their nomadic hunting grounds into lines on a white man’s map. Those territories would lead to the treaties under which the tribes eventually ceded millions of acres to the U.S. government in exchange for cash or repayment of Indian debts.

Congress appropriated funding for boatloads of food, liquor, and gifts – which were sent from St. Louis. By the meeting’s adjournment on Aug. 19, the various tribes agreed – in the interest of peace and establishing territorial claims, to the boundaries set forth by the government agents. The U.S. Government had laid the groundwork to acquire millions of acres of Indian land west of Lake Michigan during the next 25 years.

The following year, 1826, the Ojibwe asked for another meeting on Lake Superior to establish their boundaries. The bands of Ojibwe were scattered throughout the territory, far from one another at that time. This resulted in a treaty under which the Ojibwe agreed to the specific boundaries of their 19 million acres of territories; what is now the northern third of Wisconsin, Michigan’s Upper Peninsula, and northeastern Minnesota.

In 1836, 1837, 1842, and 1854, the Ojibwe signed more treaties in which they ceded all of these lands to the federal government. Of all the tribes who took part in the great meeting at Prairie du Chien 25 years before, only the Ojibwe included specific language in their treaties which permitted them to hunt, fish, and gather food on their former lands. The bands ceding territory in the treaty of 1837 in exchange for hunting, fishing, and gathering rights were the Mille Lacs and Fond du Lac Bands of Minnesota, and the Bad River, Lac Courte Orielles, Lac du Flambeau, Red Cliff, St. Croix, and Sokaogon (Mole Lake) Bands of Wisconsin.

During the next century, the states of Wisconsin and Minnesota and Michigan began to exploit the immense wealth found in the natural resources of the Great Lakes region. The great fur trade of the 18th and 19th century was drawing to a close. Dense forests and copper along the Lake Superior shore began to draw more and more whites to the area. Logging and mining camps sprang up everywhere, including land near the reservations. Minor disputes started when loggers did not hesitate to cut timber within reservation boundaries. Relations between tribes and the government, state, and local communities were dismal and remained as such through the next century.

In a huge blow to the tribes, the Wisconsin Supreme Court found the off reservation rights, as stated in the treaties, were abrogated when Wisconsin entered statehood in 1848.

“Violating” had become a way of life for Ojibwe hunters in the ceded territory over the next century. As traditional hunters struggled to feed their families and government rations became smaller and smaller, the need to hunt outside the reservation and hunting season became a necessity. As the states grew richer from the exploitation of the timber and natural resources, the Lake Superior Ojibwe bands quietly persevered.

In 1974, two Ojibwe brothers, Mike and Fred Tribble of the Lac Courte Oreilles reservation in northern Wisconsin, were arrested for ice fishing on Chief Lake, off their reservation. When confronted by DNR officials, Mike Tribble took a copy of the treaty of 1837 from his back pocket and said “No, I’m doing this under treaty rights.” The resulting citations issued were considered to be the most significant citations issued in Wisconsin’s history. The Lac Courte Orielles Band of Lake Superior Chippewa sued, claiming the treaties guaranteed the off-reservation rights. In 1978, U.S. District Court Judge James E. Doyle, for the Western District of Wisconsin, ruled that the treaties indeed ceded the lands, allowed the tribes occupancy in the territories, yet did not reserve the rights to hunt, fish and gather off-reservation for the Wisconsin bands. The LCO took the case to the U.S. Court of Appeals. By now, the case was known as LCO v. Voigt. In a landmark victory, the 7th Circuit Court of Appeals declared the Doyle decision reversed in 1983. This also became known as the Voigt Decision.

The three-judge panel concluded that pursuant to the 1837 and 1842 treaties, the Ojibwe explicitly reserved hunting, fishing, and gathering rights in the lands they sold to the United States. The trial court was instructed to determine the exact scope of the rights in further proceedings.

(Continued in Part 2)

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